Citation Nr: 1232339
Decision Date: 09/19/12 Archive Date: 09/24/12
DOCKET NO. 09-15 238 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUE
Entitlement to service connection for the cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. Mishalanie, Counsel
INTRODUCTION
The Veteran served on active duty from November 1967 to February 1970. He died in March 1997. The appellant claims as the Veteran's surviving spouse.
This appeal comes before the Department of Veterans Affairs (VA) Board of Veteran Appeals (Board) from a July 2007 rating decision of the VA Regional Office (RO) in Houston, Texas, in which the RO denied service connection for the cause the Veteran's death.
In June 2011, the appellant testified at a videoconference hearing before a Veterans Law Judge of the Board; a transcript of the hearing is of record.
In October 2011, the Board remanded the claim for additional development.
FINDINGS OF FACT
1. The Veteran served in the Republic of Vietnam from April 1968 to April 1969 and is presumed to have been exposed to herbicide agents.
2. At the time of his death, the Veteran's herniated nucleus pulposus with left sciatic neuropathy was service connected and rated 20 percent disabling.
3. The Veteran's death certificate lists the immediate cause of his death in March 1997 as respiratory failure; the underlying causes listed were congestive heart failure and cancer of the throat.
4. The Veteran was diagnosed as having cancer of the oropharynx or oral cavity; he did not have a respiratory cancer, i.e., cancer of the lung, bronchus, larynx, or trachea.
5. Cancer of the oropharynx is not a VA-recognized disease for which service connection may be presumed on the basis of herbicide exposure.
6. Cancer of the oropharynx did not manifest in service or for many years thereafter; and has not been shown to be etiologically related to service by competent medical evidence.
CONCLUSION OF LAW
A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's cause of death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2011).
Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). For claims such as this one pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008).
The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include the following: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
In addition, in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009) (unpublished).
In this case, the appellant asserts that the Veteran's cancer, which was an underlying cause of his death, was related to Agent Orange exposure during service. The RO notified the appellant of the evidence needed to substantiate her claim for service connection for the cause of the Veteran's death in a December 2010 letter. The December 2010 letter explained how to establish entitlement to DIC benefits based on a service-connected disability established during the Veteran's lifetime and notified the appellant of such established disabilities. The letter also explained how to establish DIC benefits for a disability that was not service-connected during the Veteran's lifetime. Hence, the letter met all the Hupp requirements. The letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). In addition, the letter notified the appellant as to the requirements for establishing an effective date, pursuant to Dingess/Hartman. As regards the timing of the notice, the claim was readjudicated in a July 2012 supplemental statement of the case (SSOC), thereby curing any timing deficiency.
The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). In this case, VA obtained the Veteran's service records and all of the identified post-service VA medical records. Furthermore, a medical opinion was obtained in February 2012. For the reasons explained further below, the Board finds that the February 2012 medical opinion is adequate to make a decision on this claim.
Moreover, during the informal prehearing conference and Board hearing, the Veterans Law Judge discussed with the appellant the evidence required to establish service connection for the cause of the Veteran's death. This action supplemented VA's compliance with the VCAA and complied with 38 C.F.R. § 3.103.
For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim is thus ready to be considered on the merits.
Legal Criteria
DIC is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. 38 U.S.C.A. § 1310; Darby v. Brown, 10 Vet. App. 243, 245 (1997).
The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312.
In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310.
In this case, the Veteran's death certificate reflects that the immediate cause of his death was respiratory failure and that the underlying causes were congestive heart failure and cancer of the throat. The appellant asserts that the Veteran's cancer was related to Agent Orange exposure during service.
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.
Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).
If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain enumerated diseases, including respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e).
VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which VA has not specifically determined a presumption of service connection is warranted. See 75 Fed. Reg. 81332-81335 (Dec. 10, 2010); see also 68 Fed. Reg. 27630 -27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (November 2, 1999).
The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Analysis
In this case, the appellant asserts that the Veteran's cancer was related to Agent Orange exposure during military service. Specifically, the Veteran's death certificate notes that the underlying cause of his death was "cancer of the throat" and the appellant argues that this includes cancer of the larynx and/or trachea, which are included as respiratory cancers and listed as among the diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e).
As an initial matter, the Veteran's DD Form 214 indicates that he served in Vietnam from April 1968 to April 1969. Therefore, it is presumed that he was exposed to herbicide agents during that time period. 38 C.F.R. § 3.306(a)(6)(iii).
The appellant does not allege, and the Veteran's service treatment records do not show, that cancer was diagnosed during service. On his February 1970 discharge examination, his lungs and chest were normal. He complained of shortness of breath and chest pain, but he denied ear, nose, and throat trouble. He also denied having a chronic cough.
In March 1970, the Veteran filed an original claim for service connection for a back disability. A VA examination was conducted in July 1970. The report of the examination reflects that there were no significant abnormalities of the head, face, neck, nose, sinuses, mouth, and throat. The Veteran denied having a cough. He reported having pain in his chest for two years; however, a chest X-ray was negative and no pathology was found.
In a September 1970 rating decision, the RO granted service connection and assigned a 20 percent rating for herniated nucleus pulposus with left sciatic neuropathy. The 20 percent rating remained in effect during the Veteran's lifetime. He was not service connected for any other disabilities.
In March 1996, VA treatment records reflect that the Veteran presented with a one-month history of jaw pain and a lesion of the left floor of the mouth. He said that he had noticed vague pain over the past several months, but that it had worsened over the past month. It was noted that he had a one pack per day 30-year smoking history and had one or two drinks per week. (In a November 1997 letter, the appellant indicated that the Veteran was an alcoholic). He was diagnosed as having squamous cell carcinoma of the left floor of the mouth, staged as T4N2CMO. On physical examination, the hypopharynx and larynx revealed no abnormality. A CT scan revealed adenopathy on each side of the submandibular region, staging him as "N2C." Other treatment notes refer to the squamous cell cancer of the oropharynx and "cancer of the head and neck." Chest X-rays showed lung bullous disease, noted to be associated with chronic obstructive pulmonary disease (COPD) and emphysema. An esophagram was performed to rule out pharyngeal lesion; the impression was "normal."
The report of the June 1996 VA examination for special month pension benefits notes that the Veteran had a "tumor of jaw that extends down into neck on left into lymph glands."
The March 1997 death certificate indicates the immediate cause of the Veteran's death was respiratory failure. The underlying causes listed were congestive heart failure and cancer of the throat.
In February 2012, Dr. T.H., an oncologist at the VA Medical Center (VAMC) in Houston, reviewed the Veteran's claims file and medical records. She clarified that the Veteran's cancer was an "oral cavity cancer that did not involve the Veteran's lungs, bronchus, trachea, or larynx." She stated that there was insufficient support in the medical literature for an association between oral cavity cancer and herbicide exposure. She opined that "[t]his type of cancer is most commonly caused by exposure to tobacco and alcohol, and sometimes by human papilloma virus. It is unlikely that this cancer is related to [the Veteran's] military service."
The Board acknowledges that the medical evidence includes general descriptions of the Veteran having throat cancer or cancer of the head and neck; however, more specific findings indicate that he had cancer of the oropharynx or oral cavity (floor of the mouth). He did not have a respiratory cancer as defined by 38 C.F.R. § 3.309(e), i.e., cancer of the lung, bronchus, larynx, or trachea. Therefore, his cancer is not presumed to have been associated with herbicide exposure during military service.
The Board has also considered whether service connection might be established based on proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). The Board points out that cancer of the oropharynx was not diagnosed until March 1996-more than 26 years after the Veteran was discharged from service. Such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the only medical opinion of record on the question of nexus weighs against the claim. In February 2012, Dr. T.H. opined that this type of cancer is commonly caused by exposure to tobacco and alcohol and it was unlikely related to military service. This opinion is supported by the fact that the Veteran had a history of smoking one pack per day for 30 years and was reportedly an alcoholic.
In addition to the medical evidence, the Board has considered the appellant's contentions that the Veteran's cancer was etiologically related to herbicide exposure during military service. To the extent that these assertions are being offered to either to establish a particular diagnosis or nexus with his military service, such evidence must fail. The Board finds that these determinations are complex medical matters beyond the ken of a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The questions of diagnosis and etiology go beyond a simple and immediately observable cause-and-effect relationship, and, as such, she is not competent to render an opinion on diagnosis or etiology in this case.
The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the appellant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable regarding the issue on appeal because the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).
ORDER
Service connection for the cause of the Veteran's death is denied.
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JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs